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AR01491300 


STATE  OF  NEW-YORK. 


No.  181. 

IN  ASSEMBLY, 

April  17,  1843, 


REPORT 

Of  the  select  committee  on  the  memorial  of  the 
French  Benevolent  Society  of  the  city  of  New- 
York. 

.Mr.  Daly,  from  the  select  committee  to  whom  had  been  referred  the 
memorial  of  the  French  Benevolent  Society  of  the  city  of  New- York, 
praying  for  the  passage  of  an  act  vesting  in  them  the  proceeds  of  an 
estate  bequeathed  by  Lewis  Sacombe  to  the  poor  of  the  French  com- 
munity of  the  city  of  New-York,  and  the  remonstrance  againstthe  same, 

REPORTS : 

That  it  is  set  forth  by  the  memorialists,  that  Lewis  Sacombe,  a  native 
of  France,  died  at  Maracaibo,  in  the  island  of  Surinam,  about  the  year 
1 742,  leaving  a  will  whereby  he  bequeathed  ;  11  the  "goods  moveable 
or  immovable,  gold,  silver,  and  outstanding  claims,"  he  possessed  in 
the  city  of  New-York,  to  the  poor  of  the  French  community  of  that 
city,  directing  his  executor  therein  named  to  sell  the  same,  and  pay  over 
the  proceeds  thereof  to  the  poor  funds  of  the  French  community  of  said 
city. 

That  after  the  death  of  Sacombe,  the  executor,  in  accordance  with 
the  provision  of  the  will,  sold  all  his  personal  effects  in  the  city  of  New- 
York,  and  paid  over  the  proceeds  to  the  trustees,  or  some  other  persons 
having  the  management  and  control  of  the  French  Protestant  Church 
Du  St.  Esprit,  a  congregation  of  French  Protestants  then  and  still  wor- 
shipping in  the  city  of  New-York. 

[Assembly,  No.  181.]  1 


[Assembly 


That  a  part  of  the  property  of  Sacombe  consisted  of  a  lot  of  land, 
situated  in  the  county  of  Kings,  and  now  in  the  city  of  Brooklyn,  which 
land  was  never  sold  by  the  executor ;  but  that  the  said  congregation,  in 
a  manner  unknown  to  the  memorialists,  obtained  possession  of  the  same 
shortly  after  the  death  of  Sacombe,  and  have  held  it  from  that  lime  to 
the  present,  deriving  an  annual  rent  therefrom;  and  that  neither  the  pro- 
ceeds derived  from  the  sale  of  the  effects  of  Sacombe  by  his  executor, 
nor  the  annnal  rent  derived  from  the  said  lot  of  land,  have  ever  been 
applied  by  the  said  congregation  to  the  charitable  purposes  intended  by 
the  testator ;  but  that  the  same  has  been  placed  from  time  to  lime  in  the 
treasury  of  the  said  church,  and  devoted  in  common  with  its  other  funds, 
to  religious  purposes. 

The  memorialists  contend,  that  from  the  whole  tenor  of  the  will,  it  is 
evident  that  it  was  the  intention  of  the  testator  to  devote  his  property 
for  the  benefit  of  the  French  poor  of  New-York,  without  distinction  of 
creed  ;  that  it  cannot  be  inferred  from  any  thing  in  the  will  itself, 
that  he  intended  to  make  even  the  French  poor  of  any  particular  sect 
the  recipients  of  his  bounty  ;  that  the  feeling  by  which  he  was  go- 
verned, was  a  national  and  not  a  religious  one ;  and  that  if  he  intended 
to  distinguish  between  one  religious  sect  of  his  countrymen  and  the 
rest,  he  would  have  so  expressed  it.  They  therefore  regard  the  ab- 
sorption of  this  fund  by  the  religious  congregation  Du  St.  Esprit,  as  a 
conversion  to  sectarian  purposes,  of  that  which  was  designed  for  the 
poor ;  and  conceive  it  to  be  the  duty  of  the  Legislature  to  direct  by  act 
of  law,  that  the  same  be  applied  to  the  benevolent  purpose  the  testator 
originally  intended. 

The  memorialists  further  set  forth,  that  they  were  incorporated  by 
the  Legislature  of  this  State,  in  the  year  1819,  by  the  title  of  "The 
French  Benevolent  Society,"  for  the  purpose  of  affording  "  relief  and 
succor  to  poor  French  people  in  the  city  of  New-York  ;"  and  that  they 
have  carried  out  the  objects  of  their  incorporation,  by  distributing  year- 
ly, bread,  fuel,  clothing  and  other  necessaries,  to  the  French  poor  of 
said  city,  in  addition  to  maintaining  a  free  school  for  the  education  of 
children  ;  that  the  society  is  sustained  exclusively  by  the  voluntary 
contributions  of  its  members,  which,  during  the  past  year,  exceeded 
in  amount  $6,000,  the  greater  portion  of  which  has  been  expended  in 
charily  ;  that  they  are  the  only  body,  society  or  incorporation  in  the 
city  of  New-York,  devoted  to  the  relief  of  indigent  natives  of  France; 


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Gift  of  Seymour  B.  Durst  Old  York  Library 


No.  181.] 


3 


and  they  therefore  ask  for  the  passage  of  an  act  vesting  in  them  the 
title  to  the  bequest  of  Sacombe,  as  the  legitimate  representatives  of  the 
poor  of  the  French  community  of  New-York. 

The  present  value  of  this  property  they  are  unable  to  set  forth. 
They  have  not  been  able  to  discover  what  amount  was  paid  in  by  the 
executor  of  Sacombe,  to  the  treasury  of  the  Church  Du  St.  Esprit, 
but  they  estimate  the  value  of  the  lot  of  land  in  Brooklyn  at  ten  thou- 
sand dollars. 

The  will  of  Sacombe,  a  certified  copy  of  which  is  now  before  the  com- 
mittee, is  written  in  the  Dutch  language  ;  and  the  remonstrants  differ 
with  the  petitioners,  as  to  the  correct  translation  of  the  passage  by 
which  this  legacy  was  bequeathed.  The  passage,  as  translated  by 
them,  is  rendered  as  follows : 

"  This  testator  bequeaths  to  the  poor  of  the  French  congregation  of 
the  cily  of  New-York,  all  such  estate  as  the  testator  possesses  in  that 
place,  real  or  personal,  gold  or  silver,  coined  or  uncoined,  outstanding 
pretentions  further  nothing  excepted,  lying  under  the  administration  of 
the  testator's  attorney,  James  Tavieres,  being  at  New-York  ;  which 
effects  the  testator  desires  shall  be  sold  and  made  into  money,  by  his 
hereinafter  to  be  named  executor,  in  order  to  be  lodged  in  the  chest  of 
the  poor  of  the  French  congregation  of  New-York." 

The  word  which  is  translated  community  by  the  petitioners,  is  here 
rendered  congregation  ;  and  the  passage  pointing  out  where  the  money 
shall  be  deposited,  is  given  by  the  petitioners,  "  the  poor  fund  of  the 
French  community^'  and  by  the  passage  above  quoted,  the  chest  of  the 
poor  of  the  French  congregation.  If  the  translation  of  this  portion  of 
the  will  by  the  remonstrants  be  the  correct  one,  then  it  would  seem 
that  the  disposition  made  by  the  executor  of  the  bequest  was  in  ac- 
cordance with  the  intention  of  the  testator.  At  the  death  of  Sacombe, 
the  congregation  of  the  church  Du  St.  Esprit  was  the  only  French  con- 
gregation worshipping  in  the  city  of  New-York  ;  and  the  remonstrants 
set  forth  that  at  that  lime,  and  from  thence  to  the  present  day,  there  has 
always  been  maintained  in  said  church  a  fund  for  charitable  purposes, 
known  in  the  old  French  huguenot  churches  as  the  "  Tronc  des  Pau- 
vi  es,''  (Trunk  of  the  Poor,)  or  Caisse  des  Pauvres,  (Chest  of  the  Poor.) 

The  committee  are  unable  to  determine  positively  which  of  these 
translations  is  correct.    Both  translations  of  the  original  will  are  at- 


4  [Assembly 

tested.  The  one  presented  by  the  remonstrants  appears  to  have  been 
translated  by  Brandt  Schuyler,  in  the  year  1750,  eight  years  after  the 
date  of  the  will  ;  and  that  exhibited  on  the  part  of  the  memorialists,  to 
have  been  translated  within  the  present  year.  From  the  late  period  at 
which  this  subject  was  brought  before  the  Legislature,  the  committee 
have  been  unable  to  procure  a  translation  of  the  disputed  passage  at  the 
hands  of  a  disinterested  proficient  in  the  Dutch  language ;  in  the  absence 
of  which  they  have  resorted  to  the  standard  lexicographers  who  have  ren- 
dered that  language  into  English,  for  the  true  interpretation  of  the  more 
important  words  it  contains.  In  Buys  Volkomen  Woordenboek  der  En- 
gelsche  en  Nederduitsche,  the  Dutch  word  '  gemeenle?  the  word  in  the 
original  will,  translated  by  the  respective  parties  'community,'1  ' congre- 
gation1? is  rendered  "  community,  church  ;"  and  the  word  cassa?  as 
found  in  the  original,  1  de  Arme  Cassa  der  Franse  gemeente,'  translated 
by  the  memorialists  " funds"  and  by  the  remonstrants  '  chest,'  is  not  to 
be  found  in  the  works  of  any  lexicographer  of  the  Dutch  language  they 
have  been  enabled  to  obtain. 

The  committee  are  strongly  induced  to  believe  that  the  word  ge- 
meente,  like  many  words  in  our  own  language,  is  susceptible  of  either 
signification — congregation  or  community  ;  and  that  when  used  in  con- 
nection with  the  word  cassa  in  the  same  sentence,  it  is  intended  to  im- 
ply a  congregation.  Cassa,  with  the  exception  of  a  single  letter,  re- 
sembles the  French  word  caissa  (chest) ;  and  from  t he  circumstance  of 
its  not  being  found  in  Dutch  dictionaries,  the  committee  are  disposed  to 
believe  that  it  was  put  down  and  mispelled  by  the  notary  who  drew  the 
will,  as  received  from  the  lips  of  the  testator,  who  probably  used  it  as 
a  specific  term  to  designate  an  institution  with  which  he  was  familiar, 
the  "  Caisse  des  Pauvres,"  of  huguenot  churches. 

Nothing  reliable  has  been  laid  before  the  committee  of  the  personal 
history  of  Sacombe.  It  does  not  appear  whether  he  was  a  Protes- 
tant or  a  Catholic.  It  is  contended  on  the  part  of  the  memorialists, 
that  the  will  affords  the  presumption  that  he  was  the  latter,  from  the 
fact  that  he  there  makes  a  bequest  to  a  relative  residing  in  a  catholic 
city  in  France,  but  the  supposition  is  far  more  tenable  that  he  was  one 
of  the  body  of  huguenots  that  emigrated  from  Rochelle,  after  the 
revocation  of  the  edict  of  Nanlz,  to  the  city  of  New- York,  and  founded 
the  church  du  St.  Esprit.  In  the  will  he  makes  a  bequest  in  the  same 
words,  "  Arrnen  der  franse  gemeente,"  of  his  property  in  the  city  of 
Boston  ;  at  which  place  there  was  also,  at  the  date  of  the  will,  a  congre- 
gation of  French  proteslants  or  huguenots,  similar  to  that  in  New- 


No.  181.] 


5 


York.  Boston  and  New-York  were  the  principal  places  in  the  northern 
colonies  where  the  exiled  huguenots  settled.  In  the  former  they  erect- 
ed a  place  of  worship  as  early  as  1686,  the  year  of  their  emigration, 
the  congregation  of  which  kept  together  until  the  year  1748,  when,  in 
consequence  of  the  disuse  of  the  French  language  among  them,  and 
from  the  fact  that  most  of  the  descendants  of  the  original  founders  had 
become  connected  with  other  congregations,  the  church  was  sold  to  a 
body  of  dissenting  protestants  who  retained  it  until  1788,  when  it  be- 
came a  Roman  Caiholic  Church.  (See  Collections  of  the  Massachu- 
setts Historical  Society  for  1794,  vol.  3,  page  264.)  The  Church  du 
St.  Esprit  was  founded  in  the  latter  city  in  the  year  1704.  (Smith's 
History  of  New-York,  Appendix,  vol.  1,  page  261.)  These  facts 
would  raise  a  very  strong  presumption  that  he  was  connected  with 
these  religious  exiles,  and  that  he  was  desirous  of  devoting  after  his 
death  that  part  of  his  property  remaining  in  (he  cities  where  they  had 
located,  to  be  distributed  among  the  poor  of  a  sect  with  whom  he  had 
suffered  religious  persecution. 

According  to  the  remonstrants,  the  records  of  the  church  do  not 
show  what  amount  was  received  from  Sacombe's  executor,  nor  the  man- 
ner in  which  it  was  obtained.  The  early  records  of  this  church  were  se- 
verely mutilated  and  the  greater  part  destroyed  while  the  city  of  New- 
York  was  in  the  possession  of  the  British  troops  during  the  war  of  the 
revolution.  The  lot  in  Brooklyn  appears  to  have  belonged  to  Sacombe 
in  1 742,  but  there  are  no  deeds  upon  record.  It  has  been  in  the  posses- 
sion of  the  Congregation  du  St.  Esprit  about  ninety  years,  but  the 
manner  in  which  they  obtained  it,  whether  by  conveyance  from  the 
executors  or  otherwise,  does  not  now  appear.  'This,  however,  would 
not  afford  a  sufficient  presumption  to  shake  the  validity  of  their  title ; 
for  the  recording  of  deeds  in  this  State  is  but  of  comparatively  recent 
origin.  Prior  to  its  introduction,  instruments  of  conveyance  were  kept 
in  the  possession  of  the  parties  interested  ;  and  if  the  church  had  been 
in  possession  of  any  written  evidence  of  title,  the  supposition  is  not 
jmprubable  that  it  may  have  been  either  lost  or  destroyed  during  the 
troubles  of  the  revolution. 

In  the  absence,  therefore,  of  any  positive  evidence  of  the  manner  in 
which  the  church  obtained  the  bequest  of  Sacombe,  it  is  most  reason- 
able to  presume,  at  this  remote  period  of  time,  that  it  was  obtained 
through  his  executor,  acting  under  the  will ;  and  it  is  not  unreasonable 
to  suppose  that  that  executor  had  some  knowledge  of  his  religious  faith 


6 


[Assembly 


and  personal  history.  It  appears  by  the  will,  that  at  the  time  it  was 
drawn,  he  was  the  testator's  attorney,  residing  in  the  city  of  New-York, 
and  having  the  charge  of  all  his  property  at  that  place.  The  name  of 
the  executor  would  imply  that  he  was  a  countryman  ;  and  that  taken  in 
connection  with  the  important  trust  reposed  in  him  by  the  testator, 
would  render  it  not  improbable  that  he  was  an  acquaintance.  It  is  true 
that  it  is  a  common  circumstance  for  a  person  situated  like  Sacombe, 
to  have  an  agent  in  charge  of  his  property  residing  abroad,  with  whom 
he  might  be  personally  unacquainted.  But  he  was  the  owner  in  fee  of 
land  in  the  immediate  vicinity  of  New-York,  a  circumstance  that  would 
lead  to  the  inference  that  at  some  time  before  the  making  of  the  will,  he 
was  a  resident  of  that  city  ;  for  it  is  scarcely  to  be  presumed  that  at 
that  early  period  a  Frenchman,  residing  at  the  distant  island  of  Suri- 
nam, would  invest  his  property  in  real  estate  in  Brooklyn.  In  fact  the 
circumstance  of  his  being  the  owner  of  this  land,  would  not  only  lead 
to  the  conviction  that  he  was  a  resident  of  New-York,  and  personally 
acquainted  with  his  attorney  and  subsequent  executor,  but  it  would 
materially  strengthen  the  supposition  that  he  was  a  huguenot. 

The  committee  are  not  now  informed,  nor  had  they  the  time,  at  this 
late  period  of  the  session,  to  ascertain  what  were  the  conditions  upon 
which  the  exiled  huguenots  were  permitted  to  hold  land  in  the  Colony 
of  New-York.  They  settled  at  Staten-Island,  at  the  city  of  New- York, 
and  founded,  in  its  immediate  vicinity,  a  village  named  after  their 
native  city,  New-Rochelle.  Not  being  subjects  to  the  crown  of  Great 
Britain,  they  could  not  hold  land  under  the  colonial  government,  except 
by  a  direct  grant  from  the  governor  and  council,  or  colonial  legisla- 
ture. Such  being  ihe  fact,  and  the  date  of  this  will  being  but  about 
forty  years  after  the  settlement  of  the  huguenots  in  New-York,  the 
conclusion  is  almost  irresistible  that  Sacombe  was  one  of  their  num- 
ber ;  and  that  he  held  this  land  by  a  direct  grant  of  the  colonial  legis- 
lature, as  a  huguenot.  Whatever  equities  might  exist  as  to  the  per- 
sonal property  deposited  by  the  executor  with  the  congregation  Du  St. 
Esprit,  none  could  apply  to  this  real  estate.  It  has  been  in  the  undistur- 
bed possession  of  this  church,  under  color  of  title,  for  nearly  a  century, 
and  no  court  of  law  would  disturb  it;  and  the  committee  are  disposed 
to  think,  that  every  presumption  arising  from  the  case  as  submitted  to 
them,  would  lead  to  the  conclusion,  that  if  any  personal  property  was 
placed  by  the  executor  in  the  charitable  fund  of  this  church,  he  acted , 


No.  181.1 


7 


by  so  placing  it,  in  conformity  whh  the  obvious  requirements  of  the 
will. 

Whatever  disposition  the  Legislature  might  feel  to  secure  by  posi- 
tive enactment  the  proper  application  of  a  fund  bequeathed  for  charita- 
ble purposes,  the  facts  presented  in  this  case  are  not  of  a  character  to 
warrant  so  unusual  an  act  of  legislation.  The  powers  conferred  by  the 
existing  laws  of  this  State  upon  the  Court  of  Chancery,  are  sufficiently 
ample  to  meet  the  equities  of  this  case,  did  it  present  all  that  the  me- 
morialists contend  for. 

It  has  been  urged  before  the  committee  on  the  part  of  the  memori- 
alists, that  if  the  disposition  of  the  bequest  by  the  executor  was  the 
correct  one,  nevertheless  the  church  had  forfeited  all  right  to  it,  having 
changed  from  the  Calvinistic  to  the  Episcopal  form  of  worship  since 
the  death  of  Sacombe,  and  that  it  therefore  becomes  the  duty  of  the 
State  to  make  a  different  disposition  of  it.  This  fact  rests  solely  on 
the  assertion  of  the  memorialists,  and  is  denied  by  the  remonstrants. 
But  were  it  true,  it  would  be  difficult  to  discover  how  a  circumstance 
like  this  could  confer  upon  the  State  a  right  to  interfere  with  the  pro- 
perty. Where  a  congregation  differs  as  to  the  propriety  of  respective 
modes  of  worship,  and  it  becomes  necessary  for  them  to  separate,  a 
court  of  equity  may  determine  which  of  the  parties  in  difference  is  en- 
titled to  the  possession  of  the  common  property  ;  but  where  a  whole 
congregation  change  their  form  of  worship,  it  would  be  assuming  too 
much  to  say  that  by  that  act  they  forfeited  all  right  to  their  former  pro- 
perty, and  that  it  became  vested  thereafter  in  the  State.  The  State 
has  nothing  to  do  with  the  particular  form  of  worship  of  any  congre- 
gation, nor  with  its  right  to  change  it.  Their  properly  is  incident  to 
them  as  an  association  of  individuals,  and  whatever  form  of  worship 
they  mutually  agree  upon,  is  a  matter  belonging  to  themselves.  Where 
a  fund  is  bequeathed  to  them  for  charitable  purposes,  upon  the  condi- 
tion of  their  continuance  in  a  particular  form  of  worship,  their  right  to 
retain  it  might  be  questioned  upon  their  changing  that  form  ;  but  such 
was  not  the  nature  of  the  bequest  of  Sacombe.  His  bounty  was  be- 
stowed upon  the  poor  of  the  French  congregation,  and  he  annexed  no 
condition  that  they  should  continue  Calvinists.  That  congregation  con- 
tinues to  the  present  day,  though  their  form  of  worship  may  have  un- 
dergone changes.  They  had  the  power  the  moment  they  received  this 
fund,  to  have  distributed  the  whole  of  it  among  their  poor ;  and  if  they 
saw  fit,  on  the  contrary,  to  invest  it,  devoting  the  interest,  or  but  part 


» 


[Assembly 


of  the  principal  to  that  object,  it  can  scarcely  be  presumed  that  the  pow- 
er they  originally  possessed  has  become  'abrogated  or  diminished  after 
the  lapse  of  a  century  by  reason  of  any  changes  in  their  form  of  wor- 
ship. 

The  committee,  in  conclusion,  would  reiterate  the  opinion  already 
expressed,  that  there  is  nothing  in  this  case  that  would  justify  legislative 
action.  The  title  to  the  lot  of  land  is  fixed  in  the  remonstrants  by 
lapse  of  time.  If  any  other  property  of  Sacombe  has  ever  been  re- 
ceived by  the  church,  contrary  to  the  intention  of  the  testator,  a  court 
of  equity  is  the  proper  tribunal  for  the  parties  aggrieved  to  appeal  to. 
The  committee  suppose  that  if  this  fund  was  bequeathed  to  the  poor  of 
the  French  community  of  New-York,  a  bill  in  equity  would  lie  at  the 
complaint  of  any  indigent  native  of  France  residing  in  that  city. 
At  all  events  it  would  be  a  most  extraordinary  act  of  legislation  to  vest 
a  title  to  property  under  a  disputed  or  uncertain  state  of  facts  in  any 
society,  however  benevolent  or  praiseworthy  its  object ;  and  the  com- 
mittee therefore  recommend  the  adoption  of  the  following  resolution  : 

Resolved,  That  the  prayer  of  the  memorialists  be  denied. 


SEYMOUR  DURST 


AVEP^ 


